This document constitutes the Terms of Service Agreement (“Agreement”) between you and Scarlet Publishing, referred to in this Agreement as “us,” “we,” and “Scarlet Publishing”).
This Agreement contains the terms and conditions under which Scarlet Publishing offers and provides certain book publishing, distribution, printing, promotional and other services (the “Services”) through the Scarlet Publishing website (www.ScarletPublishing.com) (the “Website”) or through other websites and services operated by or on behalf of Scarlet Publishing and its Licensees (as defined below). By indicating acceptance to this Agreement or by using or accessing the Services, including through the submission of materials (and the print, text, associated artwork and underlying works embodied therein) for publication and/or distribution by Scarlet Publishing (whether by upload to the Website or through the submission of physical embodiments of your material (and the print, text, associated artwork and underlying works embodied therein) (e.g., as Books or print publications) to Scarlet Publishing, you agree to be bound by the terms and conditions described herein and all terms incorporated by reference.
THIS AGREEMENT CREATES A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN AUTHOR, WRITER, PUBLISHER, OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE AUTHOR, WRITER, PUBLISHER, OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE USING THE SERVICES OR OTHERWISE ACCEPTING THIS AGREEMENT.
Scarlet Publishing reserves the right to add, delete and/or modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Site. In the event of material changes to the terms of this Agreement, we will send you notice by email or by such other means we deem appropriate at our sole discretion. If any modification is unacceptable to You, your only recourse is to terminate your account and discontinue use of the Services. To terminate your Agreement, you must send a Termination Notice to service@nullScarletPublishing.com with your username and the email address associated with your account and include in the subject line of your e-mail “Termination of Publishing and Distribution Agreement.” Your continued use of the Services, following posting of a change notice or new agreement on the Site or otherwise sending you a notice, or Your failure to submit a Termination Notice within fifteen (15) days of the date we provide such notice,, will constitute your binding acceptance of the changes.
Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and Scarlet Publishing that arose prior to the date of such modification.
YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH SCARLET PUBLISHING FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.
1. Certain Definitions:
The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) “Author Content” means the manuscripts, artwork, images, text, descriptive materials and other content that you have submitted to us in connection with the Services. Any Author Content you submit must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized hereunder by you.
(b) “Widgets and Apps” means any software application supplied by Scarlet Publishing that you may embed on third-party websites, or that you or any person may install on a device, to facilitate the distribution, communication to the public or other transmission of the Author Content via the Internet through such third-party websites and mobile technology.
(c) “Books” means any form of book embodying the Author Content, including print books, audio books, ebooks and other digital and physical formats of any kind.
(d) “Copyright Management Information” means the digital information conveying information regarding Digital Books, such as your name, the title of the applicable published work and the publisher or imprint name.
(e) “Licensee” means any subsidiary of Scarlet Publishing or third party licensee, such as Apple iBooks, Amazon, or others, that we may authorize or sublicense to carry out the marketing, distribution, printing and sale or other use or exploitation of the Author Content pursuant to the terms of this Agreement.
(f) “Territory” means throughout the universe, or such more limited territories to which you specifically limit the territory in the registration process.
(g) “Gateway Users” means users who signed up for a Gateway publishing package.
(h) “Anthology Participants” means users whose work is included in an anthology published by Scarlet Publishing.
You hereby appoint us as your exclusive authorized representative for the sale and other distribution of the Author Content as described in this Agreement. Although you retain the right to sell the Author Content directly, you may not appoint any third parties to: (a) act as your authorized representative for distributing the Author Content to third party distributors, whether for online or physical redistribution (because online retailers such as iBooks, Barnes & Noble, etc. will refuse content that may be delivered by multiple parties); or (b) distribute, publish or otherwise exploit the Author Content in any manner, including via ebooks and online or physical distribution.
You hereby grant to us the exclusive (except for direct sales by you as set forth in this Agreement), sublicensable, right and license to reproduce, distribute, publish, publicly, perform, publicly display, and otherwise use and exploit the Author Content as necessary to carry out the Services you select during the Term and throughout the Territory, including the right to:
(a) Reproduce, format, reformat, digitize, and convert the Author Content into Books in any form or format;
(b) Distribute, publicly perform, publicly display and otherwise make available, for promotional purposes and without remuneration to You, portions of the Author Content (“Samples”) in any form of media, including but not limited to digital media, printed media and audio, and via Widgets and Apps as you or any person authorized by you may place on any website or device, to promote the license, sale and distribution of Books;
(c) Promote, sell, sublicense, distribute, and deliver the Books and associated metadata to purchasers and resellers who may use such Books and associated metadata in accordance with usage rules approved by us and pursuant to any limitations imposed by the distribution preferences you designate in your account (e.g., only sales of permanent digital or physical files);
(d) Use and authorize others to license the use of and sale of the Author Content in connection with all manner of book services, such as, but not limited to, sales or licenses of Books as permanent digital files, digital files made available via subscription services, digital files made available via library services, audio downloads and streams (including, without limitation, permanent downloads, conditional downloads, and streams to mobile devices), and re-installs to customers who have previously purchased a specific Book;
(e) Make available and authorize Licensees to make available the Books and related Author Content in all territories in which Licensees deliver, distribute, or sell books in any form or format, including audio books and ebooks;.
(f) Print, distribute, and sell, and authorize Licensees to print, distribute, and sell, the Books in any manner authorized in connection with the Services, including directly to you, thorough our Website, through kiosks, through distributors and retailers, through third-party and specialized websites and estores, through your Bookstore Page, and through other sales channels as determined by us;
(g) Allow and authorize others to allow limited sharing of Books between existing and potential customers for promotional purposes;
(h) Use and distribute Copyright Management Information as embodied in Books;
(i) Display and electronically fulfil and deliver Authorized Artwork used in connection with the Author Content for personal use, solely in conjunction with the applicable Books;
(j) Use the Authorized Content, Authorized Artwork, and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
(k) Authorize Licensees to remove or modify the cover artwork, metadata and product description you provide for your Books for any reason without notification.
(l)Make necessary changes to this agreement to comply with Licensees’ rules and regulations not mentioned above; and
(m) Authorize our Licensees to perform any one or more of the activities specified above.
Other than your right to make direct sales of the Author Content to end users and consumer, the rights granted under this Agreement are exclusive.
4. Term and Termination:
The term of this Agreement will commence when you first access or use the Services or otherwise accept this Agreement and will continue, unless and until terminated by either you or us, upon twenty-four (24) hours written notice (the “Term”), which notice, if sent by (a) Scarlet Publishing, may be sent to you at the last e-mail address you provided to Scarlet Publishing and (b) you to Scarlet Publishing, must be sent only to the following e-mail address: service@nullScarletPublishing.com with the following information: (i) your username; (ii) the e mail address associated with your Account; and (iii) “Termination of Publishing and Distribution Agreement” in the subject line of the email. You may also request removal from your account any specific Book titles previously submitted under this Agreement by sending an e-mail requesting such removal to service@nullScarletPublishing.com with your username, the e mail address associated with your Account, and the book title(s) for which you are requesting removal. Once you make your request to have a Book title removed, our team will begin working to remove the title, but note that it may take 4-6 weeks or longer for the titles to be removed from retail outlets around the world. Until we are able to remove such title, the rights and licenses granted under this Agreement will continue to apply to such title. Sections 1, 2, 5, 7, 11, 12, 13,14, 15, 16, 17, 18, 19, 20, and 21 will survive any termination of this Agreement for any reason.
5. Payments to You
(a) E-Books and Online Distribution
(i) Wholesale rate: For Books distributed online through our third-party distribution partner network Licensees (including iBooks, Amazon, and other partners) we will remit to you the following:
(A) For all users except Gateway Users and anthology participants: We will remit to you an amount equal to one-hundred percent (100%) of the net wholesale price that we actually receive from such Licensees (after such Licensees have deducted their fees and any other applicable third party fees and costs) for the sale or other licensed uses of your Books (the “Wholesale License Fee”), less any Sales Tax (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction.
(B) For Gateway Users (as defined in Section 1): We will remit to you an amount equal to sixty percent (60%) of the Wholesale License Fee actually received, less any Sales Tax (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction.
(C) For Anthology Participants: We will remit to you an amount equal to a percentage of the Wholesale Licence Fee actually received, less any Sales Tax (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with the such transaction. The percentage you receive will depend on the number of authors participating in the anthology and the terms of your Personal Publishing Agreement with Scarlet Publishing.
(ii) BookStore Sales: In the event that authors elect to activate their BookStore page, a free eCommerce web page, we will pay you an amount equal to eighty-five percent (85%) of the retail price actually received from a customer for the sale or other licensed use of the eBooks through the BookShop (the “Retail License Fees”) net of any Sales Taxes (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction.
(iii) The Wholesale License Fees and the Retail License Fees shall hereby be collectively referred to as the “Digital License Fee”. Digital License Fees owed to Scarlet Publishing by any person or entity with whom Scarlet Publishing has entered into a contractual relationship that are not received or collected (e.g., as a result of charge backs, breach of contract, failure to pay, etc.) are not included within the calculation set forth in this Section 6(a).
(b) Print On Demand Sales: For Books sold through our Print On Demand Services, we will (i) collect the amounts received for such sales, including amounts paid by third-party distributors, (ii) deduct all costs and pass through amounts relating to such sales, including all printing, binding, manufacturing, packaging, shipping, selling and distributions fees, and Sales Taxes, and (iii) remit to you the remaining balance from such sales (the “Net Sales Amount”). The actual amount you receive will depending on a variety of factors, such as international currency conversion rates, the manufacturing costs associated with production of your Books, the terms of your Personal Publishing Agreement with Scarlet Publishing, and the fluctuation in third party distribution and other fees.
(c) To the extent that you owe any amounts to Scarlet Publishing as a consequence of this agreement, including any amounts owed under Section 8 below, Scarlet Publishing shall have the right to deduct all or a portion of such amounts from any amounts otherwise then payable to you.
(d) In the event that Scarlet Publishing overpays royalties, such as in cases when fraudulent or unauthorized purchases are charged back to Scarlet Publishing after payments are made, then Scarlet Publishing will deduct the funds owed from monies payable to you hereunder. If the amount owed exceeds your accrued monies, you agree to remit a payment back to Scarlet Publishing within 21 days of notification to adjust the overpayment.
(e) In the event that Scarlet Publishing receives notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with your warranties and representations, or in the event that Scarlet Publishing has, in its reasonable business judgment, reason to suspect that your Account has been subjected to and/or involved in fraudulent activities, Scarlet Publishing reserves the right to discontinue posting of monies to your Account and block your ability to otherwise withdraw funds there from, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by Scarlet Publishing (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by Scarlet Publishing from any monies otherwise payable to you hereunder. Certain of Scarlet Publishing’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.
(f) In the event that Scarlet Publishing is presented with a claim of breach of copyright, failure to comply with any third party license requirement or other breach of any of your warranties hereunder, and in its reasonable business judgment is compelled to engage legal representation to respond to such claim, Scarlet Publishing shall – in its sole discretion and in addition to any other remedies available – have the right to deduct from your Account or charge your credit card up to $1000 (One Thousand US Dollars) or local currency equivalent to partially offset the costs of initial associated legal fees.
(g) To the fullest extent permitted by law, Scarlet Publishing and its Licensees reserve the rights to determine the applicable sales price and other fees payable in connection with the Books.
(h) We will make payments to you (by wire or electronic transfer) when the amounts credited to you exceed the Threshold Amount (as defined below) set by you initially upon your registration with Scarlet Publishing, or as subsequently modified by you. “Threshold Amount” means the dollar amount set by you initially upon your registration with Scarlet Publishing, or as subsequently modified by you, which amount shall in no event be less than $50 (Fifty US Dollars) or local currency equivalent. Payments will occur within 7 business days from the date that your account balance exceeds the Threshold Amount. We may also elect, at our sole option to make payments to you at such other times as we deem appropriate, even if you have not met the Threshold Amount. The payments made under this Agreement will constitute full and adequate consideration for all rights granted, and all obligations undertaken, by you in this Agreement.
(i) We will maintain records which report the sale or other licensed uses of your Author Content. You may, but not more than once a year, at your own expense, engage a Certified Public Accountant (“CPA”) to examine those records, unless (s)he or his/her firm has begun an examination of our records for anyone else, until such examination has been concluded and any applicable audit issues have been resolved. Such CPA will act only under an acceptable confidentiality agreement, which provides that any information derived from such audit or examination will not be knowingly released, divulged or published to any person, firm or corporation, other than to you or to a judicial or administrative body in connection with any proceeding relating to this Agreement. Your CPA may make those examinations only for the purpose of verifying the accuracy of the statements sent to you. Your CPA may make such an examination for a particular statement only once, and only within one (1) year after the date we send you that statement. Your CPA may make such an examination only during our usual business hours, and at the place where we keep the records to be examined. If you wish to make an examination, you will be required to notify us at least thirty (30) days before the date when you plan to begin it. We may postpone the commencement of your examination by notice given to you not later than five (5) days before the commencement date specified in your notice; if we do so, the running of the time within which the examination may be made will be suspended during the postponement. If your examination has not been completed within one (1) month from the time you begin it, we may require you to terminate it on seven (7) days’ notice to you at any time; we will not be required to permit you to continue the examination after the end of that seven (7) day period. Your CPA will not be entitled to examine any other records that do not specifically report sales or other licensed uses of your Author Content. (i) If you have any objections to a statement, you will give us specific notice of that objection and your reasons for it within one (1) year after the date when we are required to send you that statement. Each statement will become conclusively binding on you at the end of that one (1) year period, and you will no longer have any right to make any other objections to it. You will not have the right to sue us in connection with any statement, or to sue us for your share of Digital License Fees on sales and licenses during the period a statement covers, unless you commence the suit within that one (1) year period. If you commence suit on any controversy or claim concerning statements rendered to you under this Agreement in a court of competent jurisdiction, the scope of the proceeding will be limited to determination of the amount of the Digital License Fees due to you for the accounting periods concerned, and the court will have no authority to consider any other issues or award any relief except recovery of any Digital License Fees found owing. Your recovery of any such royalties will be the sole remedy available to you by reason of any claim related to our statements.
(j) Tax Information. Scarlet Publishing will use its reasonable efforts to collect sales and other taxes owed on the sale of the Author Content (“Sales Tax”), and to remit such Sales Tax or other similar taxes including VAT (Value Added Tax) in relevant taxing jurisdictions, on your behalf to relevant government authorities. Notwithstanding the above, in all events, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax and other similar taxes owed in connection with the sale or distribution of the Author Content pursuant to this Agreement, and you hereby indemnify Scarlet Publishing for any Sales Tax and other similar taxes that may be owed in addition to those amounts collected and remitted on your behalf by Scarlet Publishing.
6. Your Obligations Regarding Rights in Author Content:
Any Author Content you submit must be owned or controlled by you or you must have sufficient rights therein to submit the Author Content and grant the rights granted under this Agreement with respect to such Author Content, such that your submission and our exercise of the rights granted under this Agreement will not infringe upon or violate the rights of any third party. You or a licensee (on your behalf) will obtain and pay for any and all clearances or licenses required in the Territory (or any portion thereof) for the use of the Author Content and any related metadata as intended by this Agreement. Specifically, and without limiting the generality of the foregoing, you or a licensee on your behalf will be responsible for and shall pay (i) any royalties and other sums due to writers, authors, co-authors, artists, copyright owners and co-owners, publishers and any other publishing royalty participants from sales, distribution or other uses or exploitation of the Books, (ii) all payments that may be required under any collective bargaining agreements applicable to you or any third party, and (iii) any other royalties, fees and/or sums payable with respect to the Author Content, metadata or other materials provided by you to us.
7. Payments to Scarlet Publishing:
In consideration of the Services rendered hereunder, you shall pay to Scarlet Publishing the fees in effect at the time you request the particular Services, as set forth on the Website, in this Agreement, or as otherwise made available to you (the “Scarlet Publishing Fees”). The Scarlet Publishing Fees may be amended from time to time by Scarlet Publishing in its sole discretion. If any amended Scarlet Publishing Fees apply to you, Scarlet Publishing will provide you notice of such amended Scarlet Publishing Fees at least fifteen (15) days prior to the effective date of the amendment. Your continued use of the Services after such effective date constitutes your agreement to the amended Scarlet Publishing Fees. If you do not agree to such amended Scarlet Publishing Fees, your sole option is to terminate this Agreement in accordance with the termination procedures set forth in Section 5 above. The amended Scarlet Publishing Fees will apply to all Services rendered after the effective date of such amendments. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of Your Scarlet Publishing Account by you or anyone else using your Account. It is your responsibility to notify Company if your payment method has changed by making the appropriate changes to your Scarlet Publishing Account settings. If you do not provide a valid payment method your Services may be disconnected or interrupted.
8. Right to Withdraw Material:
You have the right, at any time during the Term, to withdraw your permission for the sale or other uses of specified Book titles in your account, upon written notice to us (“Withdrawal”). Within 5 business days following our receipt of your notice of Withdrawal, we will use reasonable efforts to advise our Licensees that they are no longer authorized to offer the sale or other use of (the “Withdrawn Titles”). Please note, however, that it may take 4-6 weeks or longer for the titles to be removed from certain Licensees, especially foreign retailers, and that the rights and licenses granted under this Agreement will continue to apply to such title until we are able to remove such title. Sending of your notice of Withdrawal will not limit your responsibility for sales and other uses of the Author Content that occurred prior to the implementation of such Withdrawal and will not limit in any way the rights of end users who have acquired the Author Content. Scarlet Publishing is not responsible for, and has no liability for, any delays of our Licensees in removing the Author Content.
9. Names and Likenesses; Promotional Use and Opportunities:
(a) Names and Likenesses. You hereby grant to us, during the Term, the right to use and to authorize our Licensees to use the names and approved likenesses of, and biographical material concerning any writers, authors, artists, or publishers, as well as Book or publication name, in any marketing materials for the sale, promotion and advertising of the applicable Book, which is offered for sale or other use under the terms of this Agreement (e.g., an author, writer, publisher, or artist name and likeness may be used in an informational fashion, such as by textual displays or other informational passages, to identify and represent authorship and publishing credits of the applicable author, writer, or artist in connection with the exploitation of applicable Book).
(b) Promotion. You hereby grant to us and our Licensees the right to market, promote and advertise the Books as available for purchase or license, as we and they determine in our and their discretion.
Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, you own all right, title and interest in and to (i) the Author Content , (ii) the Books, (iii) the Samples, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you.
11. Monitoring of Your Content; Removal of Content from Website:
(a) Monitoring. Scarlet Publishing does not control or have the right to control the Author Content and does not have any obligation to monitor the Author Content for any purpose. Scarlet Publishing may choose, in its sole discretion, to monitor, review or otherwise access some or all of the Author Content, but by doing so Scarlet Publishing assumes no responsibility for the Author Content, no obligation to modify or remove any inappropriate elements of the Author Content, or to monitor, review or otherwise access any other author’s content or artwork.
(b) Right of Removal. Scarlet Publishing reserves the right, to remove and not use or exploit any of the Author Content from the Website in its sole and absolute discretion, for any reason or for no reason, including if Scarlet Publishing believes such content: (i) is offensive, harmful. pornographic, obscene, defamatory unlawful, indecent, inflammatory, false, misleading, fraudulent or otherwise objectionable; (ii) is the subject of a dispute between you or us and a third party; (iii) is content to which you cannot document your rights therein upon Scarlet Publishing’s request; (iv) violates or is alleged to violate the intellectual property rights, privacy rights or other rights or protected interests of a third party; (v) is the subject of a takedown notice by a party claiming to own the rights therein, or (vi) is the subject of any fraudulent activity, or for any other reason in Scarlet Publishing’s sole and absolute judgment is necessary to protect the business interests of Scarlet Publishing and any of its business partners or Licensees. Our partners, retailers and Licensees may reject content for any reason (including but not limited to racist or sexual content, hyperlinks, SEO spam, Public Domain material or infringing/offensive/prohibited images or content). Scarlet Publishing’s service has been rendered once we have formatted and delivered the content, and if your content is rejected by any partner for any reason, Scarlet Publishing will have no liability to you, and Scarlet Publishing will not offer any refund or credit for any services (including but not limited to conversion, formatting, cover design, and distribution). Scarlet Publishing may also remove the Author Content from the Website if you are abusive or rude or provide false or intentionally misleading information to any Scarlet Publishing employees or agents. Scarlet Publishing shall have no liability to you for the removal of any of the Author Content from the Website or any Licensee website or service. The removal of any of the Author Content shall not relieve Scarlet Publishing of the obligation to pay you any royalties that may have accrued prior to the removal of the Author Content.
(c) No Termination Due to Removal. This Agreement shall not be terminated automatically by Scarlet Publishing’s removal of the Author Content from the Website or Licensee’s websites or services. In order for you to terminate this Agreement following the removal of any of the Author Content, you must send Scarlet Publishing a notice of Termination.
12. Account Information; Disclosures:
(a) Your Account Information. In order to access some features of the Website, including your account information and periodic statements, you will have to create an online account (“Account”). You hereby represent and warrant that the information you provide to Scarlet Publishing upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that your Account information, including your e-mail address, is kept accurate and up to-date at all times during the Term of this Agreement.
(b) Password. As a registered user of the Services you will have login information, including a username and password. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party, other than an agent authorized to act on your behalf. As you will be responsible for all activity that occurs under your Account, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Website. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your Account information has been compromised or that your Account has been accessed by a third party not authorized by you, then you agree to immediately notify Scarlet Publishing by e-mail to service@Scarlet Publishing.com. You will be solely responsible for the losses incurred by Scarlet Publishing and others (including other users) due to any unauthorized use of your Account that takes place prior to notifying Scarlet Publishing that your Account has been compromised.
13. Prohibited Use of the Website and Licensee Websites and Services:
(a) You agree not to use the Website, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage Scarlet Publishing, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, you agree that you will not, whether through the Website, our Licensees or the Author Content, do or attempt any of the following:
(b) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Website or any other part thereof, except and solely to the extent permitted by this Agreement, the features of the Website or by law, or otherwise attempt to use or access any portion of the Website other than as intended;
(c) Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website, use of the Website, access to the Website or content obtained through the Website, as a result of your being granted permission to upload the Author Content to the Website;
(d) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website or features that enforce limitations on the use of the Website;
(e) Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of third parties;
(f) Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortuous, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
(g) Create a false identity or impersonate another for the purpose of misleading others as to your identify, including, but not limited to, providing misleading information to any feedback system employed by Scarlet Publishing;
(h) Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;
(i) Interfere with or disrupt the Website, networks or servers connected to the Website or violate the regulations, policies or procedures of such networks or servers;
(j) Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in the Author Content; or
(k) Use the Website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
14. Availability of Services:
The Services are provided on an “as is,” “as available” basis, and Scarlet Publishing may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available via the Website, at any time and without notice and without liability to you. The features, media, content, products, software or services available on and through the Website may be out of date, and Scarlet Publishing makes no commitment to update any aspect of the Website. Scarlet Publishing makes no representations and warranties with respect to availability or performance of the Website and may discontinue the Services at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of the Author Content uploaded to the Website or otherwise delivered to Scarlet Publishing as physical product.
15. Additional Representations and Warranties of the Parties:
(a) Mutual Representations and Warranties. Each party represents and warrants to the other that it:
(i) is authorized to enter into this Agreement on the terms and conditions set forth herein.
(ii) will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party will interfere with the performance of its obligations under this Agreement.
(iii) shall perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.
(b) Representations and Warranties by You. You represent and warrant to Scarlet Publishing that:
(i) You represent and warrant that you have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to the Author Content and metadata. For the avoidance of doubt, if you are acting on behalf of an author, writer, publisher, or corporation, you hereby represent and warrant to Scarlet Publishing that you are fully authorized to enter into this Agreement on behalf of such author, writer, publisher, or corporation and to grant all of the rights and assume and fulfil all of the obligations, covenants, and representations and warranties set forth in this Agreement.
(ii) You represent and warrant that you own or control the necessary rights in order to make the grant of rights, licenses and permissions herein, that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the Author Content, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the Author Content) as contemplated by this Agreement. Furthermore, you represent that the exercise of such rights, licenses and permissions by us and our Licensees shall not violate or infringe the rights of any third party.
(iii) You represent and warrant that the Author Content does not plagiarize or pirate any other work or infringe upon or violate any copyright, trademark, trade secret or other proprietary right.
(iv) You represent and warrant that the Author Content does not contain SEO keyword spam, either in your manuscript or your metadata tags.
(v) You represent and warrant that the Author Content does not contain multiple hyperlinks to advertisements or affiliate marketing pages.
(vi) You represent and warrant that the Author Content does not contain any advertisements or content that is primarily intended to advertise or promote products of services.
(vii) You represent and warrant that the Author Content does not violate any right of privacy that is libellous or violate any personal right or other right of any kind of any person or entity.
(viii) You represent and warrant that the Author Content does not violate state and federal laws or advocate illegal activities.
(ix) You represent and warrant that the Author Content does not advocate hateful, discriminatory or racist views or actions toward others.
(x) You represent and warrant that any and all instruction, material, or advice contained in the Author Content is not likely to result in injury and the Author Content includes appropriate warning and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice, and that the Author Content shall not contain any errors or omissions in any recipe, formula, design, or instruction which, if followed, might harm the user.
(xi) You represent and warrant that the Author Content is not a public domain work (unless you are the true author) and is not sourced or copied, either in part or in entirety, from commercial services, articles, or information sources which have been licensed to others.
(xii) You and we represent and warrant that we will not act in any manner which conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by you or us will interfere with our performance of our obligations under this Agreement.
(xiii) Each party represents and warrants that it shall perform its obligations hereunder in full compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance.
16. No Representations and Warranties With Respect to Sales and Distributions:
Scarlet Publishing makes no guarantees regarding the minimum number of unit sales or uses of the Author Content or regarding any revenue to be earned under this Agreement. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with Scarlet Publishing for the sale, distribution or licensed use of the Author Content, including by paying the royalties they owe us for the distribution of the Author Content. If a Licensee refuses to pay us for the use of the Author Content, you agree that you will assume responsibility for collecting any payments that may be due from such non-compliant Licensees for any sale, distribution or licensed use of the Author Content if such third party fails or refuses to pay such amounts to Scarlet Publishing upon Scarlet Publishing’s request.
(a) Indemnification. You hereby indemnify, and hold us harmless from any and all damages, claims, liabilities, costs, losses and expenses (including, but not limited to, legal costs and attorneys’ fees) (collectively, “Claims”) arising out of or connected with any claim, demand, or action which arises out of any breach or alleged breach or violation of any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, your representations and warranties regarding non-infringement of any copyrights or any other rights in and to any other forms of intellectual property. You will reimburse us, on demand, for any payment made by us at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Pending the determination of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this paragraph.
(b) Indemnification Request. If we make an indemnification request to you under this Section, we may permit or require you to control the defence, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by Scarlet Publishing or imposes any conditions or obligations on Scarlet Publishing other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defence in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe Scarlet Publishing an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
18. Copyright and Intellectual Property Infringements
Notice and procedure for making claims of copyright or other intellectual property infringements.
(a) Scarlet Publishing respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Site or the Scarlet Publishing Service.
(b) Scarlet Publishing’s intellectual property policy is to (1) remove material that Scarlet Publishing believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by “repeat infringers.” Scarlet Publishing considers a “repeat infringer” to be any user that has uploaded Products or Submissions to the Service and for whom Scarlet Publishing has received more than two ‘takedown notices’ or Cease and Desist notices. Scarlet Publishing has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Scarlet Publishing’s own determination.
(c) Procedure for Reporting Claimed Infringement. If you believe that any Productions or Submissions made available on or through the Site or the Scarlet Publishing Service have been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(iii) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Scarlet Publishing to locate the material;
(iv) Information reasonably sufficient to permit Scarlet Publishing to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You should consult with your own lawyer to provide a valid notice of claimed infringement.
(d) Designated Agent Contact Information. Scarlet Publishing’s Designated Agent for notices of claimed infringement can be contacted at:
Via E-mail : compliance@nullScarletPublishing.com
Via Mail : Attn: Ruby Davies, 132-134 Great Ancoats St, Manchester M4 6DE United Kingdom
(e) Counter Notification. If you receive a notification from Scarlet Publishing that material made available by you on or through the Site or the Scarlet Publishing Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Scarlet Publishing with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Scarlet Publishing’s Designated Agent through one of the methods identified in Section 11(d) of this TOS, and include substantially the following information:
(i) Your physical or electronic signature;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) Your full name, address, and telephone number, and a statement that you consent to the jurisdiction of the English Courts in the matter.
(a) THE WEBSITE, THE SERVICES, AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(b) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SCARLET PUBLISHING AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND RELATING TO THE SERVICES, THE WEBSITE OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SCARLET PUBLISHING OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SCARLET PUBLISHING AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY SCARLET PUBLISHING, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER THE AUTHOR CONTENT VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
20. Limitation of Liability; Basis of the Bargain:
(a) SCARLET PUBLISHING SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. SCARLET PUBLISHING SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY SCARLET PUBLISHING OR YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF THE AUTHOR CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH SCARLET PUBLISHING OR OTHERWISE. SCARLET PUBLISHING’S TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY SCARLET PUBLISHING FOR THE DISTRIBUTION OR LICENSING OF THE AUTHOR CONTENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST SCARLET PUBLISHING.
(b) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SCARLET PUBLISHING, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SCARLET PUBLISHING, SCARLET PUBLISHING’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT SCARLET PUBLISHING WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.
21. General Provisions:
(a) Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture, and neither party is the other’s agent, partner, or employee.
(b) Entire Agreement. This Agreement together with the Personal Publishing Agreement contains the entire understanding of the parties relating to the subject matter hereof. This Agreement supersedes all previous agreements or arrangements between us pertaining to the digital distribution of content, provided that if you previously entered into a digital distribution agreement with us in the past, and elected any options, those options will remain in place under this Agreement. This Agreement cannot be changed or modified except as provided herein. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.
(c) Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
(d) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to the addresses provided to and by you upon registration with the Scarlet Publishing Site, or as properly updated, or, in the absence of a valid electronic mail address, via any other method Scarlet Publishing may elect in its sole discretion, including, but not limited to, via posting on the Website.
(e) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of England and Wales, without regard to conflict of laws principles. Any and all disputes arising out of this Agreement shall be resolved in the manner set forth in the Personal Publishing Agreement.
(f) Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
(g) Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(i) Assignment. Scarlet Publishing may assign its rights and obligations under this Agreement at any time to any party. You may not assign your rights and/or obligations under this Agreement without obtaining Scarlet Publishing’s prior written consent.
Last updated: 27 May 2016